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2010 DIGILAW 263 (CHH)

Shailesh Khandelwal v. Meenakshi Khandelwal

2010-11-09

I.M.QUDDUSI, N.K.AGARWAL

body2010
ORDER N.K. Agarwal, J. 1. This appeal has been filed by the Appellant/non-applicant against the order dated 13-7-2010 passed by the 1st Additional Principal Judge, Family Court, Raipur in Guardian and Wards case No. 7/2010. 2. Facts of the case in brief are as under: i. On 11-12-1999, marriage of Appellant was solemnized with the Respondent. Out of said wedlock, a female child namely Ku. Shreshtha was born on 15-11-2002. Application filed Under Section 13(B) of the Hindu Marriage Act, 1955 (for short, hereinafter referred to as 'the Act of 1955') for grant of divorce by mutual consent was allowed by the Court of Principle Judge, Family Court, Raipur vide judgment and decree dated 1-2-2008 and the divorce decree was passed. In the above proceedings, it has been contended that the minor female child Ku. Shreshtha will remain in the custody of Respondent herein, i.e. mother. However, the Court did not pass any order regarding custody of the minor child under Section 26 of the Hindu Marriage Act, 1955. ii. The non-applicant filed an application under Section 25 of Guardians and Wards Act, 1890 (for short, hereinafter referred to as 'the Act of 1890'), for custody of minor child Ku. Shreshtha inter alia stating therein that Ku. Shreshtha was handed over to her when the decree of divorce was passed and since then the child was in her custody. She left her daughter to her father due to summer vacations as she was working in Hyderabad in HSBC Bank. The Appellant brought Ku. Shreshtha with her father's permission for few days to Raijpur without her consent. Thereafter despite several efforts made by her and her father, the custody of Ku. Shreshtha was not given to her, even Appellant did not allow her to meet with the child, also denied her right of guardianship. iii. The Appellant in his reply to the above application admitted birth of Ku. Shreshtha out of their wedlock on 15-11-2002. However, it has been contended that Respondent's father himself handed over the child to him on 6-7-2008, also executed consent letter in this regard stating therein that in future he and his daughter Meenakshi may meet with the child with the consent of the Appellant. The child is being well maintained by him, also getting his and his parents' love and affection. The child is very happy with them and the application deserves to be dismissed. The child is being well maintained by him, also getting his and his parents' love and affection. The child is very happy with them and the application deserves to be dismissed. iv. Learned trial Court vide order impugned allowed the Respondent's application and directed the Appellant to hand over the child within a period of one month to the Respondent. Hence this appeal. 3. Shri B.P. Sharma, learned Counsel appearing for the Appellant would submit that the Respondent is working and living alone at Hyderabad, whereas minor was living with Appellant at Raurkela. Looking to the nature, place and timings of her job, it was not possible for her to look after and take care of the child. Her parents are also not in a position to maintain and look after the child and due to this, they have handed over custody of minor to the Appellant. The minor being of the age of 7 years and the Appellant being her father, is her natural guardian and the child was in fact in his legal custody through out the period. The Appellant is maintaining the child properly, giving her proper education in a well reputed school of Raipur, providing all the facilities and comfort to help her in her intellectual, cultural and social development in the life, also caring for her physical comfort and moral values. Looking to the overall circumstances, welfare of the child is in keeping her with him. Learned trial Court has seriously erred in allowing Respondent's application. Learned trial Court has passed the order impugned ignoring all the relevant provisions of the Act of 1890 and Hindu Minority and Guardianship Act, 1956 (for short, hereinafter referred to as 'the Act of 1956'). Even the learned trial Court has not made any attempt to obtain preference of the child although the minor is old enough to form her intelligent preference. Reliance has been placed on the judgment of Hon'ble Supreme Court in the cases of Sheila B. Das v. P.R. Sugasree (2006) 3 SCC 62, Vikram Vir Vohra v. Shalini Bhalla (2010)4 SCC 409 and Vishnu and Ors. v. Jaya (2010) 6 SCC 733. 4. Reliance has been placed on the judgment of Hon'ble Supreme Court in the cases of Sheila B. Das v. P.R. Sugasree (2006) 3 SCC 62, Vikram Vir Vohra v. Shalini Bhalla (2010)4 SCC 409 and Vishnu and Ors. v. Jaya (2010) 6 SCC 733. 4. On the other hand, Shri M.K. Bhaduri, learned Counsel appearing for the Respondent would support the order impugned and would contend, the child was in the custody of mother as per order of the Family Court in divorce case; the child was illegally removed from her custody; the Respondent can better look after the child; the Respondent is living at a big place i.e. Hyderabad earning very good salary, can spend more and more on education and maintenance of the child; it is in the welfare of the child to be in mother's custody, the child is only 7 years old, No. importance could be given to the preference expressed by her to stay with the Appellant; and the appeal deserves to be dismissed. Reliance has been placed on the judgments in the cases of Baddi Reddi Bulliraju v. K. Surya Rao AIR 1959 AP 670, Lachhmi Ram v. Smt. Prabhoo AIR 1964 HP 1, Geeta and Ors. v. Ratan Dhuraji AIR 1966 MP 221 and Mohan Kumar Rayana v. Komal Mohan Rayana 2010 AIR SCW 2504. 5. We have perused the order impugned and record of the trial Court. 6. The Appellant hereinafter is the father of the child living with his parents i.e. grand parents of the child. Earlier at the time of divorce it was agreed upon between the parties that the minor will remain in the custody of the Respondent, although No. order under Section 26 of the Act of 1955 has been passed in divorce proceedings. Later on it appears, the father of the Respondent handed over the child to the Appellant who admitted the child in school where the child is prosecuting her studies. Parents of the Appellant are financially sound. Appellant's shop is annexed to his residence and the Appellant is able to devote sufficient time to the child. On the other hand, the Respondent is living alone in the city of Hyderabad. Parents of the Appellant are financially sound. Appellant's shop is annexed to his residence and the Appellant is able to devote sufficient time to the child. On the other hand, the Respondent is living alone in the city of Hyderabad. Looking to her job timings, it would be very difficult for the Respondent to maintain and take care of the child, therefore, the child was kept at Raurkela in the custody of her parents who in turn have handed over the minor to the Appellant. 7. The Act 1890 consolidates and amends the law relating to the Act of 1890. Section 4 of the Act defines "minor" as "a person who has not attained the age of majority". "Guardian" means "a person having the care of the person of a minor or of his property, or of both his person and property". "Ward" is defined as "a minor for whose person or property or both there is a guardian". Sections 5 to 19 of the Act relate to appointment and declaration of guardians. Section 7 thereof deals with "power of the Court to make order as to guardianship" which reads as under: 7. Power of the court to make order as to guardianship.-(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made - (a) appointing a guardian of his person or properly, or both, or (b) declaring a person to be such a guardian, the court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. 8. Section 8 of the Act of 1890 enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced hereunder: 17. 8. Section 8 of the Act of 1890 enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced hereunder: 17. Matters to be considered by the court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the court may consider that preference. xxx (5) The Court shall not appoint or declare any person to be a guardian against his will. 9. The Act of 1956 is another important statute relating to minority and guardianship among the Hindus. Section 4 defines "minor" as "a person who has not completed the age of eighteen years". "Guardian" means "a person having the care of the person of a minor or of his property or of both his person and property", and includes a "Natural guardian". "Natural guardian" means any of the guardians mentioned in Section 6 of the Act 1956. 10. Section 6 enacts as to who can be said to be a "Natural guardian". It reads thus: 6. "Natural guardian" means any of the guardians mentioned in Section 6 of the Act 1956. 10. Section 6 enacts as to who can be said to be a "Natural guardian". It reads thus: 6. Natural guardians of a Hindu minor.-The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl - the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father; (c) in the case of a married girl - the husband: Provided that No. person shall be entitled to act as the natural guardian of a minor under the provisions of this section-(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.-In this section, the expressions father' and 'mother' do not include a stepfather and a stepmother. 11. Section 8 thereof enumerates powers of natural guardian and Section 13 deals with welfare of minor which reads thus: 13. Welfare of minor to be paramount consideration.-(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No. person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. 12. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act of 1956 has to be construed literally and must be taken in its widest sense. 13. The word "welfare" used in Section 13 of the Act of 1956 has to be construed literally and must be taken in its widest sense. 13. Section 6 of the Act of 1956 provides that the natural guarding of a Hindu minor, in case of a boy or an unmarried girl is the father and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. As per Section 13, of the Act of 1956, in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Under Section 17 of the Act of 1890, the court is under a duty to appoint the most suitable person amongst the rival claimants for guardianship, although a person who under the personal law would be entitled to the custody of the child in preference to any one else. As per Section 17(3) of the Act of 1890,' if the minor is old enough to form intelligent preference, the court may consider that preference. Scope of Section 17 of the Guardians and Wards Act is that the court has to see who of the several applicants has a preferential right to be appointed as guardian of the minor under the personal law keeping also in view the welfare of the minor. The court should be guided by the sole consideration of the welfare of the minor. 14. The Apex Court in case of Sumedha Nagpal v. State of Delhi and Ors. 2000 (9) SCC 745 while interpreting the proviso to Section 6(a) of the Act of 1956, held that decision on the question of custody should be made bearing in mind the welfare of the child - It cannot be made simply on the basis of right of the parties under the law, and observed in para 4 and 5 of the judgment as under: 4. Even at this stage, Shri D.D. Thakur, the learned Counsel for the Petitioner laid great emphasis that we should not shirk our task at least with respect to the limited question of ordering restoration of the custody of the minor child to the mother. Even at this stage, Shri D.D. Thakur, the learned Counsel for the Petitioner laid great emphasis that we should not shirk our task at least with respect to the limited question of ordering restoration of the custody of the minor child to the mother. He submitted that though Section 6 of the Act recognises guardianship of the minor child with both the parents, exclusive right of the mother is recognised in respect of the custody of a minor child below five years. This legislative recognition of the maternal instinct should be honoured by us by treating the custody of the child with the father as illegal and the custody should be handed over to the mother pending the proceedings suggested by us earlier in the course of this order. 5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned Counsel for the Petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is No. substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the Petitioner, we should not be understood as having held that a petition would lie under Article 32 for grant of custody of a minor child; we refrain from examining or deciding the same. 15. The Hon'ble Apex Court in the case of Elizabeth Dinshaw (Smt.) v. Arvand M. Dinshaw and Anr. 15. The Hon'ble Apex Court in the case of Elizabeth Dinshaw (Smt.) v. Arvand M. Dinshaw and Anr. 1987 (1) SCC 42 while dealing with Section 7 and 17 of the Act of 1890 has held that when a question arises before a court pertaining to custody of a minor child, the matter has to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. 16. The Hon'ble Apex Court in case of Anjali Kapoor (Smt.) v. Rajeev Baijal 2009 (7) SCC 322 relying upon the two judgments referred to hereinabove has held in para 26 that "ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the Appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the Appellant to retain the custody of the child." 17. The Supreme Court in case of Mohan Kumar Rayana v. Komal Mohan Rayana 2010 (5) SCC 657, Gaurav Nagpal v. Sumedha Nagpal 2009 (1) SCC 42 Athar Hussain v. Syed Siraj Ahmed and Ors. 2010 (2) SCC 654 have also held that welfare of the child is the sole and single yardstick to assess comparative: merit of the parties contesting for guardianship. 18. The Hon'ble Supreme Court in case of Mausami Moitra Ganguli v. Jayant Ganguli 2008 (7) SCC 673 has observed in para 19 to 23 as under: 19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, No. statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, No. doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. 21. In Rosy Jacob v. Jacob A. Chakramakkal reported in (1973) 1 SCC 840 a three-Judge Bench of this Court in a rather curt language had observed that: 15. ...The children are not mere chattels: nor are they mere playthings for their parents. 21. In Rosy Jacob v. Jacob A. Chakramakkal reported in (1973) 1 SCC 840 a three-Judge Bench of this Court in a rather curt language had observed that: 15. ...The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 22. In Halsbury's Laws of England (4th Edn., Vol. 13) the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: 809. Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other. 23. Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is No. ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. There is nothing on record to suggest that the welfare of the child is in any way peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the Appellant is a teacher, now employed in a school at Panipat, where she had shifted from Chandigarh some time back. Earlier, she was teaching in some school at Calcutta. Admittedly she is living all alone. Except for a very short duration when he was with the Appellant, Master Satyajeet has been living and studying in Allahabad in a good school and is stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad. 19. In Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. 1984 (3) SCC 698 the Supreme Court has held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. 20. In Nil Ratan Kundu a nd Anr. v. Abhijit Kundu 2008 (9) SCC 413 the Hon'ble Supreme Court has held in para 52, 57 and 58 of its judgment as under: Principles governing custody of minor children 52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But: such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But overand above physical comforts, moral and ethical values cannot be ignored. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But overand above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. 57. In our opinion, in such cases, it is not the 'negative test' that the father is not 'unfit' or disqualified to have custody of his son/daughter that is relevant but the 'positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of a minor in favour of father, the mother or any other guardian. 58. Though this Court in Rosy Jacob (supra) held that children are not mere chattels nor toys, the trial Court directed handing over custody of Antariksh 'immediately' by removing him from the custody of his maternal grand-parents. Similarly, the High Court, which had stayed the order of the trial Court during the pendency of appeal, ordered handing over Antariksh to his father within twenty four hours positively. We may only state that a child is not 'property' or 'commodity'. To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. 21. A common threat running into the dicta laid down by the Supreme Court in aforementioned cases is that father is natural guardian of a minor child and therefore, has a preferential right to claim custody of his child but in matters concerning custody of a minor child, paramount consideration is welfare of the minor and not legal right of a particular party. It is not the welfare of the father nor the welfare of the mother that is paramount consideration of the Court. It is not the welfare of the father nor the welfare of the mother that is paramount consideration of the Court. It is the welfare of the minor and of the minor alone which is paramount consideration and further in custody cases, wishes of the minor should be ascertained by the court before deciding as to whom custody should be given. 22. In the present case, the child is of the age of 7 years. In case of Nil Ratan 2008 (9) SCC 413 (supra) in case of custody of a child aged about 6 years, the Hon'ble Supreme Court criticized the trial Court in deciding the matter without ascertaining wishes of the child. It was held by the Supreme Court: Such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. 23. Having the interest of the minor in mind, we decided to meet her separately in order to make an assessment of her behavioural pattern towards both the Appellant as well as the Respondent. From the various questions which we put to her, in our view, she is an extremely intelligent and precocious child. Although, she wanted to enjoy the love and affection both of her father as well as her mother, but in our presence, she expressed her desire to remain with the Appellant and her grand parents. She seems to prefer her father's company as the bounding between them is greater than the bounding with her mother. 24. Now reverting to the facts of the instant case, it is not in dispute that the child has been handed over to the Appellant by the Respondent's father. Financial resources of the father as well as the mother are sound but the child is happy in the custody of the Appellant. It appears the Appellant is maintaining the child with utmost care. The child is admitted in a reputed school, receiving love and affection of father as well as of grand parents. Looking to the overall circumstances of the case, we are of the considered opinion that the child has remained with the Appellant as well as her grand parents for a long time and is growing up well in an atmosphere which is conducive to its growth. Looking to the overall circumstances of the case, we are of the considered opinion that the child has remained with the Appellant as well as her grand parents for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the Appellant to retain the custody of the child. During the interview although the child has not shown any animosity towards her mother, but has shown deep love and affection towards the Appellant and her grand parents. The child's behaviour and appearance was sweet, level of intellect was above average. There is nothing on record to suggest that the Welfare of the child is in any way peril in the hands of the father. The statutory presumption that the father being the natural guardian is better suited for the child is also a relevant consideration. The child was given in the custody of the Respondent by learned trial Court on the sole criterion of her more sound financial position but the trial Court ignored other aspects of the matter as also did not call her to ascertain her wishes as to with whom she wants to stay. The trial Court over looked the fact that the mother is living alone at Hyderabad and is not in a position to look after her daughter all the time. How a child of such a tender age could survive alone was not considered. More over, the child being in the custody of natural guarding i.e. father it cannot be said that an unauthorized person has removed the child from the custody of her natural guardian. 25. In view of above, the order passed by the trial Court is not sustainable in law, which deserves to be set aside and the Appellant is allowed to retain the custody of the child. However, it cannot be over looked that the mother is to have visitation rights to the child. Therefore, while allowing this appeal, we direct that the Respondent shall have the visitation right twice every month preferably on Saturday or Sunday or a festival day. The Appellant shall allow the child to visit the mother from morning to evening. However, it cannot be over looked that the mother is to have visitation rights to the child. Therefore, while allowing this appeal, we direct that the Respondent shall have the visitation right twice every month preferably on Saturday or Sunday or a festival day. The Appellant shall allow the child to visit the mother from morning to evening. The Respondent/mother shall take the child and leave her at the Appellant's home on such day. 26. No. order as to costs.